Hoyt v. U.S. Bank N.A.
ORDER denying 29 Defendant's Motion for Summary Judgment. This matter remains set for a four-day jury trial to commence on 2/9/2015. By Judge William J. Martinez on 12/2/2014. (alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-1032-WJM-KLM
U.S. BANK N.A., a Delaware corporation,
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Keith Hoyt (“Plaintiff”) brings this action against his former employer,
U.S. Bank N.A. (“Defendant”), for discriminatory termination and retaliation in violation
of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq.
(“ADEA”). (ECF No. 1.) Before the Court is Defendant’s Motion for Summary
Judgment (“Motion”). (ECF No. 29.) For the reasons set forth below, the Motion is
I. STANDARD OF REVIEW
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). W hether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Serv., 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248.
The Court must resolve factual ambiguities against the moving party, thus favoring the
right to a trial. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II. FACTUAL BACKGROUND
The following relevant facts are viewed in the light most favorable to the Plaintiff,
and are undisputed except where noted.
Defendant is a nationally chartered bank operating a Small Business
Administration division pursuant to the federal government’s Small Business
Administration loan program. (Deposition of Maureen McGovern (“McGovern Dep.”)
(ECF Nos. 29-2 & 46-2) pp. 23-24.) In March 2005, Plaintif f was hired at age 59 as a
regional sales manager for Defendant’s Small Business Administration division by
either Vicki Bunting or Dave Bartram. (McGovern Dep. p. 21-23; Deposition of Keith
Hoyt (“Hoyt Dep.”) (ECF No. 35-2) pp. 5, 28.) As a regional sales manager, Plaintiff
covered a specific geographical region, managed a team of business development
officers (“BDOs”) in that region, and collaborated with bankers in other departments.
(McGovern Dep. pp. 23-24; Hoyt Dep. pp. 45-46, 51-52.)
In the fall of 2009, Erik Daniels became the national sales manager for the Small
Business Administration division with direct supervisory authority over Plaintiff.
(Deposition of Erik Daniels (“Daniels Dep.”) (ECF Nos. 29-4, 35-1) p. 24.) W ithin a few
months of Daniels’s hire, Steve Mattern, who was then a regional sales manager, told
Plaintiff that Daniels had made a comment that there were two managers who were too
old for the job and ought to have enough sense to retire, one of whom was impliedly
Plaintiff. (Hoyt Dep. pp. 199-200.)
In early 2010, Plaintiff was issued his 2009 Performance Review, which gave
him an overall rating of 3, meaning “solid performance” on a scale of 1 (“exceptional”) to
5 (“not effective”). (ECF No. 29-11 at 1, 3.) The 2009 Performance Review included a
suggestion to “develop in the area of credit analysis” and a goal of “aggressive
management of sales performance”. (Id. at 4.)
Plaintiff testified at his deposition that in the fall of 2010, after he returned from a
week off of work due to illness, Daniels told Plaintiff that he thought it was a mistake for
Plaintiff to come back to work because the job is too stressful for him and he “just can’t
handle it anymore.” (Hoyt Dep. p. 208.)
In February 2011, Plaintiff called Human Resources to complain that he was
disproportionately impacted by a recent company decision to reorganize the
geographical regions assigned to each regional sales manager, and suggested that
Daniels could be discriminating against him. (Hoyt Dep. pp. 186-88.) In the course of
that conversation, Plaintiff reported an allegedly sexually harassing comment Daniels
made regarding a female employee at a dinner attended by Plaintiff and three male
BDOs approximately three years earlier. (Id. pp. 186-92.) Daniels was informed of
Plaintiff’s sexual harassment complaint on February 18, 2011. (ECF No. 35-4.)
Defendant investigated Plaintiff’s allegations of sexual harassment and issued a written
warning to Daniels. (McGovern Dep. pp. 84-85, 105.)
In Plaintiff’s 2010 Performance Review, issued in April 2011, he received an
overall rating of 4, meaning “needs improvement”. (ECF No. 29-12.) An overall rating
of 4 makes the recipient ineligible for a long-term incentive bonus payment. (Daniels
Dep. p. 80.) An overall rating of 4 also generally leads to an action plan or development
plan, which identifies specific areas of unsatisfactory performance and requires
improvement in those areas within a specified time frame. (McGovern Dep. p. 65.)
Plaintiff received a Development Plan as part of his 2010 Performance Review, which
specified a need to improve his knowledge of credit transactions, build collaborative
relationships, be proactive as a leader of his BDO team, and hold his BDOs
accountable. (ECF No. 29-12.)
On June 29, 2011, Plaintiff was placed on a 60-day Action Plan, which stated
that “we have not seen the improvement necessary to satisfy the Development Plan”
and identified several areas of failures to meet expectations, including failure to hire any
new BDOs, failure to manage poorly performing BDOs, failure to communicate and
follow through on credit training, failure to successfully follow through in meetings and
communications with supervisors, and low production numbers. (ECF No. 29-13.) The
Action Plan indicated that failure to improve in the identified areas “may result in further
disciplinary action, up to and including termination”, and that the Action Plan
disqualified Plaintiff from receiving any incentive bonuses during the quarter in which it
was issued. (Id.)
Two other regional sales managers in the Small Business Administration
division, Han Kim and Mark Gibson, were also given Development Plans in 2011 based
on a failure to meet production goals in their 2010 Performance Reviews. (McGovern
Dep. p. 66.) However, neither Kim nor Gibson were placed on subsequent
performance improvement plans in 2011. (Daniels Dep. p. 96.)
After completion of the 60-day Action Plan period, Daniels recommended to his
supervisor, Julie Huston, that Plaintiff be terminated. (Daniels Dep. pp. 23, 191.)
Plaintiff was terminated on September 7, 2011, at the age of 66. (McGovern Dep. pp.
118-19; Hoyt Dep. p. 5.)
Plaintiff filed this action on April 18, 2013. (ECF No. 1.) Defendant’s Motion was
filed on March 25, 2014. (ECF No. 29.) Plaintiff filed a Response (ECF No. 35) and
Defendant filed a Reply (ECF No. 46).
Plaintiff’s Complaint brings two claims: (1) discriminatory termination based on
age in violation of the ADEA; and (2) retaliation. (ECF No. 1 at 5-7.) As Def endant
moves for summary judgment as to both claims, the Court will consider each claim in
The ADEA prohibits an employer from discriminating “against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s age.” 29 U.S.C. § 623(a)(1). The ADEA protects workers “who are at
least 40 years of age,” 29 U.S.C. § 631(a), and it was passed “‘to promote employment
of older persons based on their ability rather than age’ and ‘to prohibit arbitrary age
discrimination in employment.’” MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266,
1276 (10th Cir. 2005) (quoting 29 U.S.C. § 621(b)).
“A plaintiff who seeks to prove that an employer discriminated against him or her
can use either direct or circumstantial evidence.” Stone, 210 F.3d at 1136 (quoting
Ingels v. Thiokol Corp., 42 F.3d 616, 620 (10th Cir. 1994)). “Direct evidence is
evidence, which if believed, proves the existence of a fact in issue without inference or
presumption.” Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1117 (10th Cir. 2007)
(internal quotation omitted). Where no direct evidence of discrimination exists, a
Plaintiff may prove discrimination by indirect or circumstantial evidence, in which case
the claim is analyzed under the McDonnell Douglas burden-shifting test. See Stone,
210 F.3d at 1137 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
Here, Plaintiff’s Complaint asserts that Daniels’s negative comments constitute
“direct evidence—or, at the very least, raise an inference” of discrimination. (ECF No. 1
¶ 34.) However, in Plaintiff’s Response to the Motion, Plaintiff defends his ADEA claim
only under the McDonnell Douglas framework, and does not contest Defendant’s
assertion that there is no direct evidence in the record. (ECF No. 35 at 19-20.) On
review of Daniels’s alleged comments, it is apparent that all of them require an
inferential step to support the claim that Plaintiff was discriminatorily terminated
because of his age. Evidence that Daniels stated that Plaintiff was too old for the job,
while indicative of potential discrimination, is not explicitly related to Plaintiff’s
termination. Thus, such comments are “statements which on their face are expressions
of personal opinion” rather than a policy that itself constitutes discrimination, and “can
only support an inference of discrimination if the trier of fact finds the inference
reasonable, and so constitute only circumstantial or indirect evidence of discrimination
against the plaintiff.” Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1477
(10th Cir. 1996). As these comments are not direct evidence of discrimination, see
Riggs, 497 F.3d at 1117, the Court must proceed to the McDonnell Douglas burdenshifting framework.
Under McDonnell Douglas, Plaintiff must first establish a prima facie case of
employment discrimination. Stone, 210 F.3d at 1137. A successfully established prima
facie case creates a presumption of discrimination, and the burden then shifts to
Defendant to rebut that presumption by asserting a facially legitimate, nondiscriminatory basis for its employment decisions. Id. If Defendant does so, the burden
shifts back to Plaintiff to offer evidence that age was a determinative factor in the
employment decision or that Defendant’s non-discriminatory reason was merely pretext
for discrimination. Id.
In order to establish a prima facie claim for job termination based on age
discrimination under the ADEA, a plaintiff must show that: “(1) he is within the protected
age group; (2) he was doing satisfactory work; (3) he was discharged; and (4) his
position was [either not filled or was] filled by a younger person.” Rivera v. City & Cnty.
of Denver, 365 F.3d 912, 920-21 (10th Cir. 2004) (citing McKnight v. Kimberly Clark
Corp., 149 F.3d 1125, 1128 (10th Cir. 1998)).
The elements of Plaintiff’s prima facie case are not at issue in the instant Motion.
As an employee who was 66 years old at the time he was terminated, Plaintiff is
undisputedly a member of the protected class. (See Hoyt Dep. p. 5.) Defendant does
not dispute that Plaintiff has presented evidence of satisfactory performance,1 nor does
Defendant contest whether Plaintiff’s termination was an adverse employment action.
Finally, Defendant does not dispute for the purposes of the Motion that Plaintiff was
replaced with a younger person. (ECF No. 46 at 8 ¶ 38.) In fact, the Motion fails to
raise any argument as to Plaintiff’s prima facie burden at all, instead focusing
exclusively on the pretext prong of the McDonnell Douglas analysis. (ECF No. 29-1 at
16.) Therefore, the Court finds that Plaintiff has satisfied his initial burden to present a
prima facie case of discriminatory termination. See Rivera, 365 F.3d at 920-21.
Next, the burden shifts to Defendant to come forward with a legitimate, nondiscriminatory basis for Plaintiff’s termination. Defendant has presented evidence
showing that Plaintiff was terminated for poor performance. (ECF Nos. 29-11, 29-12,
29-13.) The Court finds that this explanation is a legitimate, non-discriminatory basis
for Plaintiff’s termination.
Accordingly, the burden shifts back to Plaintiff to show that the proffered basis is
a pretext for discrimination. Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).
Defendant’s argument regarding poor performance appears to be relevant to the
second prong of the prima facie case, namely whether Plaintiff was performing satisfactorily.
However, Defendant frames its argument exclusively in the context of the pretext stage of the
McDonnell Douglas analysis, and does not argue that Plaintiff has failed to establish a prima
facie case. (See ECF No. 29-1 at 16.) As Defendant fails to contest Plaintiff’s prima facie, the
Court will review Defendant’s arguments as they are framed in the Motion, applied only to
In order to establish a genuine issue of material fact as to pretext, a plaintiff must
produce evidence that would allow a reasonable juror to find that the defendant’s
non-discriminatory reason is “unworthy of belief.” Id.; see also Argo v. Blue Cross &
Blue Shield of Kan., Inc., 452 F.3d 1193, 1203 (10th Cir. 2006) (a plaintif f may meet his
pretext burden by presenting “evidence of such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the em ployer’s proffered legitimate
reasons for its action that a reasonable factfinder could rationally find them unworthy of
credence.”) (internal quotation omitted). In determining whether a plaintiff has shown
pretext, the Court must consider the plaintiff’s evidence in its totality. Orr v. City of
Albuquerque, 531 F.3d 1210, 1215 (10th Cir. 2008).
In this case, Plaintiff argues that the basis proffered for his termination was
pretextual based on the following evidence: (1) he was treated differently than younger
comparators; (2) Daniels failed to provide feedback during his Action Plan, which
allegedly set him up to fail; (3) Daniels used subjective criteria in evaluating him; and (4)
Daniels made negative comments about Plaintiff’s age. (ECF No. 35 at 17, 22-27.) In
the Motion, Defendant argues that this evidence is insufficient to show pretext, and
further contends that Defendant is entitled to the “same actor inference” that its reasons
for terminating Plaintiff were not pretextual. (ECF No. 29-1 at 14-15.)
Same Actor Inference
The “same actor inference” is generally applied in cases where an “employee
was hired and fired by the same person within a relatively short time span,” and raises
“a strong inference that the employer’s stated reason for acting against the employee is
not pretextual.” Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183 (10th Cir. 2006)
(citing Proud v. Stone, 945 F.2d 796, 797-98 (4th Cir. 1991)). This inference arises
from the premise that an individual who chose to hire a plaintiff, fully aware of his
protected characteristics, would not likely terminate that plaintiff shortly thereafter
because of those characteristics. Id.
Here, it is undisputed that the same individual did not hire and fire Plaintiff. (See
McGovern Dep. p. 21; Daniels Dep. p. 191.) Nevertheless, Defendant contends that
the “same actor inference” should be extended to circumstances where the same
individual treated a plaintiff favorably and then terminated him within a relatively short
time span. (ECF No. 29-1 at 15 (citing Rexroat v. AutoZone, Inc., 1999 WL 33604012,
at *3 (W.D. Ky. Dec. 9, 1999); Hines v. Hillside Children’s Ctr., 73 F. Supp. 2d 308, 316
(W.D.N.Y. 1999)).) Defendant argues that, based on Plaintiff’s testimony that he
received good Performance Reviews up until 2010, Daniels gave Plaintiff a good
Performance Review for 2009, only one year before placing him on an Action Plan for
poor performance. (ECF No. 46 at 9.) Defendant concludes that Daniels’s actions
merit the inference that he would not have reviewed Plaintiff’s performance favorably
one year, and then give Plaintiff a poor Performance Review as a pretext for
discriminatory age-based termination one year later. (Id.)
Defendant cites no case law in the Tenth Circuit supporting its extension of the
“same actor inference” to these facts. (See id.) That aside, a further difficulty with
Defendant’s argument is that it is inconsistent with its own presentation of the facts. As
Defendant itself argues, Plaintiff’s “performance continued to have the same
deficiencies as had been noted by U.S. Bank for several years and several different
managers, despite the instructions to improve.” (ECF No. 46 at 10.) Defendant
compares the Performance Reviews for 2008, 2009, and 2010, pointing out that all
three contained critiques of Plaintiff’s knowledge of credit matters and management of
his BDOs. (ECF No. 29-1 at 15 (citing ECF Nos. 29-10, 29-11, 29-12).) Taking the
facts in the light most favorable to Plaintiff, there is no indication that Daniels treated
Plaintiff favorably, followed by unfavorable treatment within a short time span.
Accordingly, even assuming without deciding that the “same actor inference” should be
extended beyond the hiring and firing context, the Court finds it inapplicable here.
Plaintiff argues that pretext can be inferred from evidence that he was treated
differently than Han Kim and Mark Gibson, both of whom were regional sales managers
who were younger than Plaintiff. (ECF No. 35 at 23.) Defendant argues that Kim and
Gibson were treated the same as Plaintiff. (ECF No. 29-1 at 19-20.)
“[E]vidence that similarly situated employees received different treatment than
the plaintiff is indicative of pretext.” Riggs, 497 F.3d at 1120. Co-workers are “similarly
situated” if they “deal with the same supervisor and are subject to the same standards
governing performance evaluation and discipline.” Id. (quoting Timmerman v. U.S.
Bank, N.A., 483 F.3d 1106, 1120 (10th Cir. 2007)).
Here, Plaintiff contends that all three regional sales managers—Kim, Gibson,
and himself—failed to meet their production goals in 2010, but only Plaintiff was placed
on an Action Plan, and only Plaintiff received an overall rating of 4. (ECF No. 35 at 23.)
Defendant does not contest that Kim and Gibson were similarly situated comparators,
in that they all reported to Daniels and were subject to the same performance
evaluation standards. However, Defendant argues that all three employees were
treated the same, because all three were issued a rating of 4 on their failures to meet
production goals, and all three were placed on development plans. (ECF Nos. 29-1 at
20; 46 at 11.) Defendant further argues that Plaintiff’s Performance Review and
Development Plan identified other areas of needed improvement, and was not focused
solely on production shortfalls, while there is no indication that Kim and Gibson suffered
from other such deficiencies. (Id.)
Defendant’s argument amounts to an assertion that Plaintiff’s overall rating of
4—compared to Kim’s and Gibson’s ratings of 3—resulted from deficiencies other than
the production shortfall. The evidence shows that all three employees received a 4 for
production, and Kim’s and Gibson’s 2010 Performance Reviews each contain more
ratings of 3 in other areas as compared to Plaintiff’s 2010 Performance Review.
However, as Daniels himself testified, the overall rating is not achieved by a
mathematical calculation from the ratings given in the subcategories; rather, the overall
rating is determined in conversations between Daniels and Huston, prior to writing the
Performance Review of individual categories. (Daniels Dep. pp. 80-81.)
Because the overall rating was not a result of the aggregate ratings of the
subcategories, the evidence permits an inference that the discrepancy between the
overall ratings for Plaintiff and his younger comparators could be based on anything,
including discrimination. Accordingly, the Court finds that the evidence reveals a
dispute of fact, as it is not so conclusive as to prevent a reasonable jury from finding
that the difference in Performance Review overall ratings between Plaintiff and his
younger comparators is evidence of pretext.
Feedback and Subjective Criteria
Plaintiff next contends that he was set up to fail in his Performance Reviews and
his Development and Action Plans, arguing that Daniels’s use of subjective criteria in
issuing Performance Reviews and failure to provide sufficient feedback during the
Development Plan and Action Plan are indicative of pretext. (ECF No. 35 at 23-24.)
Defendant responds that Plaintiff did, in fact, receive sufficient feedback from his
supervisors during the Action Plan, and that in any case, a lack of feedback alone does
not indicate that Defendant’s legitimate non-discriminatory reasons for terminating
Plaintiff were pretextual. (ECF No. 46 at 12-13.) Defendant does not contest that
Daniels used subjective criteria in issuing Performance Reviews, but argues that
subjectivity alone is insufficient to establish pretext. (Id. at 13.)
Defendant’s argument with respect to whether sufficient feedback was provided
points to a dispute of fact. Defendant’s other arguments amount to contentions that
more is needed to show pretext. The Court agrees that neither evidence of token
attempts to improve Plaintiff’s performance, nor the use of subjective evaluation criteria,
are sufficient to establish pretext on their own. Cf. Plotke v. White, 405 F.3d 1092,
1106 (10th Cir. 2005) (holding that “[c]ourts view with skepticism the use of subjective
evaluations in making termination decisions” and collecting cases). However,
Defendant does not contest that such evidence may be probative of pretext in
combination with other evidence of discrimination. (See id.; ECF No. 46 at 13 (citing
Bell v. Bolger, 708 F.2d 1312, 1319-20 (8th Cir. 1983)).)
The Court has already found that the evidence that Defendant treated younger
comparators differently can support a finding of pretext. Thus, Defendant’s arguments
do not provide reason to disregard this additional evidence of pretext, however limited
its probative value if viewed in isolation. Accordingly, the Court finds that both the
evidence of a lack of feedback and the use of subjective criteria in performance
evaluations can support a finding of pretext here. See Plotke, 405 F.3d at 1106.
Plaintiff asserts that the following comments support a finding that Defendant’s
reasons for terminating him were pretextual: (1) shortly after Daniels was hired in 2009,
Steve Mattern, another regional sales manager, told Plaintiff that Daniels had stated
that there were two managers who were too old for the job and ought to have enough
sense to retire; (2) in the fall of 2010, after Plaintiff took a week off due to illness,
Daniels told Plaintiff, “I think this is a mistake you coming back to work. This job’s too
stressful for you. You just can’t handle it anymore.”; and (3) a day or two after Plaintiff’s
termination, regional sales managers Kim and Gibson each called Plaintiff and stated
that they believed that Daniels fired Plaintiff because Daniels thought Plaintiff was too
old for the job. (ECF No. 35 at 26 (citing Hoyt Dep. pp. 199-208.) Defendant contends
that these alleged comments were mere “stray remarks” that cannot give rise to a
finding of pretext. (ECF No. 46 at 13-14.)
In McKnight v. Kimberly Clark Corp., the Tenth Circuit discussed a prior case
holding that “‘age-related comments by non-decision makers’” were “‘stray remarks’
which are insufficient to establish pretext.” 149 F.3d at 1129 (quoting Cone v.
Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994)). The McKnight Court
held that, for the plaintiff to meet her burden of showing pretext through age-related
comments, she was required to show that the comments “were made by a decision
maker, and that there was a nexus between the discriminatory statements and the
decision to terminate.” Id.; see also Stone, 210 F.3d at 1140 (“Age-related comments
referring directly to the plaintiff can support an inference of age discrimination, but
isolated or ambiguous comments may be, as here, too abstract to support such an
inference.”) (internal quotation marks omitted).
Here, the alleged discriminatory comments were made by Daniels, the ultimate
decision maker in Plaintiff’s termination. (See Daniels Dep. p. 191.) Further, all three
statements refer directly to Plaintiff. In Daniels’s comment to Plaintiff, his use of the
word “anymore” suggests that Daniels believed Plaintiff was previously capable of
performing the job but was no longer capable due to the passage of time and Plaintiff’s
As for the comment that Mattern reported to Plaintiff in 2009 and the statements
from Kim and Gibson, Plaintiff has not shown any temporal nexus or other connection
to his termination; indeed, Plaintiff has produced no evidence indicating the basis for
Kim’s and Gibson’s belief that Daniels terminated him based on his age.2 However, the
comment Daniels made directly to Plaintiff occurred in the fall of 2010, perhaps six
months before Plaintiff received the 2010 Performance Review that ultimately led to his
termination. As Daniels testified, he determined near the beginning of 2011 that
Defendant also challenges the admissibility of these statements, arguing that they are
hearsay. (ECF No. 29-1 at 14, 20.) In response, Plaintiff points out that he has disclosed
Mattern, Kim, and Gibson as witnesses, and could call them at trial to testify as to what Daniels
said to them, resolving any hearsay concerns. (ECF No. 35 at 26-27 n.1.) The Court notes
that evidence need only be capable of being presented in an admissible form to be considered
on summary judgment, and need not be actually admissible in the form presented. See Fed. R.
Civ. P. 56(c)(2). Nevertheless, as these statements lack evidence of the nexus required to
support a finding of pretext, they do not support Plaintiff’s argument against summary
judgment, and thus the Court need not consider Defendant’s evidentiary challenge at this time.
Plaintiff’s overall rating would be 4, some three months after the comment was made in
the fall of 2010. (See Daniels Dep. p. 80-81.) While the temporal proximity of these
events is more attenuated than that in similar cases, the Court finds that for the
purposes of summary judgment, Plaintiff has sufficiently shown a nexus between
Daniels’s comment and the negative 2010 Performance Review and Development Plan.
Cf. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999).
The Court concludes that Daniels’s comment to Plaintiff that he should not come
back to work because he “just can’t handle it anymore,” while not direct evidence of
discrimination, was not merely a “stray remark”. See Stone, 210 F.3d at 1140-41
(citing Tomsic, 85 F.3d at 1479). Rather, viewed in the light most favorable to Plaintiff,
this comment is evidence that supports a finding of pretext.
In sum, considering this evidence, combined with the factual disputes regarding
the evidence that younger comparators were treated differently, feedback for
performance improvement was insufficient, and subjective evaluation criteria were
used, the Court finds that a jury could make a reasonable inference of discrimination
and find Defendant’s purported non-discriminatory reasons “unworthy of belief.”
Randle, 69 F.3d at 451. Therefore, the evidence of pretext is sufficient to defeat
summary judgment. See Tomsic, 85 F.3d at 1479 (“A jury may infer discriminatory
animus from the simple showing of pretext, and it may find illegal discrimination upon a
prima facie case and pretext.”) (internal quotation marks omitted).
Accordingly, Defendant’s Motion is denied as to Plaintiff’s claim for discriminatory
The McDonnell Douglas burden-shifting analysis discussed above also applies to
Plaintiff’s retaliation claim. Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th
Cir. 2006). In order to make out a prima facie case of retaliation, a plaintiff must
present evidence that: “(1) he engaged in protected opposition to discrimination; (2)
he suffered an adverse action that a reasonable employee would have found material;
and (3) there is a causal nexus between h[is] opposition and the employer’s adverse
action.” Johnson v. Weld Cnty., 594 F.3d 1202, 1215 (10th Cir. 2010) (quoting Williams
v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1086 (10th Cir. 2007)). “T he requisite causal
connection may be shown by producing ‘evidence of circumstances that justify an
inference of retaliatory motive, such as protected conduct closely followed by adverse
action.’” McGarry v. Board of Cnty. Comm’rs, 175 F.3d 1193, 1201 (10th Cir. 1999)
(quoting Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982)).
Defendant raises only one argument as to Plaintiff’s retaliation claim, challenging
whether Plaintiff has established a causal connection between his protected activity and
his termination.3 (ECF Nos. 29-1 at 23; 46 at 15-16.) In response, Plaintif f argues that
he has established a causal connection because the tem poral proximity of his February
2011 sexual harassment complaint to the 2010 Performance Review, issued in April
Defendant raises this challenge under the pretext prong of the McDonnell Douglas
framework. (ECF No. 29-1 at 22-23.) However, the substance of Defendant’s argument also
goes to the third element of Plaintiff’s prima facie case, namely whether a causal nexus has
been established between Plaintiff’s opposition to discrimination and Defendant’s adverse
action. Johnson, 594 F.3d at 1215. Because the Court finds that Plaintiff’s evidence
sufficiently establishes a causal connection, and because the Motion here does not contest
whether Plaintiff has established a prima facie case, the Court will discuss the issue under the
pretext prong for purposes of the Motion.
2011, creates an inference of retaliation. (ECF No. 35 at 30-32.)
Temporal proximity between protected activity and the allegedly retaliatory
adverse action may combine with additional circumstantial evidence to create a fact
issue as to pretext. See City of Prairie Village v. Butler, 172 F.3d 736, 752 (10th Cir.
1999). Moreover, temporal proximity can contribute to an inference of retaliation. Id. at
749; see also Trujillo v. Pacificorp, 524 F.3d 1149, 1157 (10th Cir. 2008).
Here, Plaintiff was given his negative 2010 Performance Review and
Development Plan on April 22, 2011, less than two months after his February 2011
complaint regarding sexual harassment was communicated to Daniels. (See ECF Nos.
29-13, 35-4; Hoyt Dep. p. 186.) The Performance Review and Development Plan is itself
an adverse employment action, as it resulted in Plaintiff’s loss of eligibility for bonus
compensation and affected the likelihood of termination.4 See Medina v. Income Support
Division, 413 F.3d 1131, 1137 (10th Cir. 2005) (a disciplinary proceeding, reprimand or
warning may be adverse employment action “if it adversely affects the terms and
conditions of the plaintiff’s employment—for example, if it affects the likelihood that the
plaintiff will be terminated, . . . or affects the plaintiff’s future employment opportunities.”).
Furthermore, the Performance Review led directly to Plaintiff’s Action Plan, which
ultimately resulted in Plaintiff’s termination in September 2011.
Defendant’s Motion also raises an argument that any discrimination claim based on an
adverse action occurring prior to April 8, 2011 is time-barred. (ECF No. 29-1 at 10-12.) Plaintiff
concedes this, but argues that both the termination and the 2010 Performance Review and
Development Plan occurred after that date, and thus are not time-barred. (ECF No. 35 at 1719.) The Court agrees that Plaintiff’s claims are not based on any time-barred adverse actions.
Accordingly, Defendant’s argument as to timeliness is moot, and the Court need not discuss it
Plaintiff has presented no other evidence supporting a causal connection
between his complaint and his termination. Nevertheless, the temporal proximity
between Plaintiff’s discrimination complaint and the 2010 Performance Review and
Development Plan, combined with the disputes of fact as to Plaintiff’s claim of
discriminatory termination, can create an inference of retaliation in this case. See
Trujillo, 524 F.3d at 1157. The Court notes that this evidence is quite limited, and that
the resulting inference of retaliation is weak. However, as Plaintiff has shown a genuine
dispute of fact as to whether Defendants’ proffered basis for the negative Performance
Review and Development Plan was pretext for retaliation, the Court concludes that it
would be inappropriate to grant summary judgment and remove the claim from
consideration by the jury. Accordingly, summary judgment is also denied as to
Plaintiff’s retaliation claim.
For the reasons set forth above, the Court ORDERS as follows:
Defendant’s Motion for Summary Judgment (ECF No. 29) is DENIED; and
This matter remains set for a four-day jury trial to commence on February 9,
Dated this 2nd day of December, 2014.
BY THE COURT:
William J. Martínez
United States District Judge
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